Reynolds v. Myers, 51 Vt. 444

Reynolds v. Myers

51 Vt. 444 | Vt. | 1879

The opinion of the court was delivered by

Pierpoint, C. J.

This is an action of assumpsit based upon a written agreement or obligation executed by John B. Page, Red-field Proctor, and John J. Myers to the plaintiff, in which they stipulated that the plaintiff should have within sixty days either six thousand dollars or two hundred and forty shares of the stock of the Sutherland Falls Marble Company, at their option. This *454obligation was signed' by the said Page, Proctor, and Myers. Page and Proctor settled with the plaintiff each for the one third of said amount, and this action is now brought against the said Myers to recover for his one third of the, amount, said parties not electing to pay the stock.

The plaintiff, in his declaration, for the purpose-of showing the consideration for the aforesaid agreement, alleges that on the 21st day of November, 1870, he had a certain contract with the Sutherland Falls Marble Company, a corporation chartered, organized, and doing business under the laws of Massachusetts, and that the surrender of such contract constituted the consideration for the contract in issue.

Upon the trial in the County Court, the plaintiff, in support of his declaration, and to show the existence of the alleged company in Massachusetts, offered what purported to be the book of records of a corporation under the laws of Massachusetts, called the Sutherland Falls Marble Company, and proved by one of the directors of that company that the book was the record book of said company, that the records were in the handwriting of, and were authenticated by, J. D. Bryant, who was the clerk of the said company during the whole time of its existence. The book was objected to as not having been sufficiently proved, the records were objected to, and an objection also taken on the ground that there was no proof of a law of Massachusetts under which said company was organized. The evidence was admitted, to which the defendant excepted ; and the question here is, was that evidence properly admitted ? We think it was. The Massachusetts corporation is no party to this proceeding ; neither is this action based upon any contract made with such company. The question as to the existence of the corporation comes up collaterally. All that the plaintiff was required to show was that he had a contract that was valid and binding between that corporation and himself. To do this, all that was necessary was, to show that the corporation held itself out to the world, and assumed to act, as a corporation regularly organized under an act of incorporation, or the general laws of the State ; and that it contracted with him in that capacity. For this purpose the books and records of the corporation *455showing such an organization, identified by a witness having actual knowledge of the fact, and showing that it acted and did business under the same, was admissible. Showing this, and that acting in such capacity it entered into the contract alleged with the plaintiff, is sufficient to establish the validity and binding force of the contract as between the parties. The corporation could not then deny its corporate existence, or the regularity of its organization. It is said in Angelí & Ames on Corporations, 648, note, that, “ persons who have contracted in a corporate name are estopped to.deny the sufficiency of their organization,” citing 25 N. Y. 574, 26 N. Y. 75, and 11 Ohio, 516. The cases to which we have been referred in the argument, wherein it was held that proof of the act of incorporation, or the law under which the corporation was organized, was necessary, were cases in which the corporation were parties, and in which it was necessary to show their corporate existence to give them a status in court; but that is not the case here. All that the plaintiff is required to do in this case is, to show that the party with whom he comtracted professed to be a corporation, and contracted with him as such. That is sufficient to support the allegation that it is a corporation, as the corporation is not then at liberty to deny its existence. We think the evidence which was introduced to that end was properly admitted.

The plaintiff having established the existence of a valid contract with the corporation in Massachusetts, the question then arises, was that contract of such a nature that its surrender bv the plaintiff could be a sufficient consideration for the contract upon which this suit is predicated ? It must be kept in mind that the corporation in Massachusetts and the corporation in Vermont, in all their substantial elements were one and the same. All the property and assets of the Massachusetts company were transferred to the Vermont company, and all the debts and liabilities of the former were assumed by the latter. The business and the place of business were the same, and the persons interested in” and having the management and control of the business were the same.. The only material change was in the source from which the corporate existence was derived. The nature, object, and terms of *456the contract that the plaintiff had with the Massachusetts company were known to parties who entered into the contract now in issue. On the trial in the County Court the defendant claimed that by the terms of the contract with the Massachusetts company, the contract might be terminated at any time at the option of either party, and for that reason its surrender by the plaintiff could not be a sufficient consideration for the contract now in issue. The plaintiff claimed that although there was no definite period during which the contract was to continue, yet, the understanding was that it should continue as long as the sales showed a satisfactory increase from what they had been. How the contract was in this respect, was a question for the jury upon the whole evidence bearing upon that point. The plaintiff in his testimony, in answer to the question, “ Was there any definite time fixed as to this contract and how long it should run ?” answered, “ No sir, it was subject to termination by either party at option.” He afterwards said the understanding was that it should continue as long as the sales showed a satisfactory increase from what they had been — so long as they seemed to be doing well. There was other evidence tending to show what the contract was in this respect. The court submitted the question to the jury under a charge that was quite as favorable to the defendant as he had a right to ask, and the jury found the contract to be as the plaintiff claimed. Neither party had attempted to terminate it, so that it stood as a subsisting obligation, and passed from the old to the new corporation with all the other obligations and liabilities assumed by the new corporation. Page, Proctor, and Myers understood perfectly what that contract was, and they regarded and treated it as a subsisting obligation, and negotiated with the plaintiff for its surrender, and the result was the plaintiff did surrender it, and took therefor the obligation on which this suit is founded. Such a consideration we think sufficient. This view of the case covers substantially all the points made upon the trial below. The motion in arrest was properly overruled. The declaration is clearly sufficient after verdict.

Judgment affirmed.